Delhi District Court
State vs Pappu on 28 January, 2025
In the Court of Ms. Isra Zaidi: JMFC-04, North East, Karkardooma Courts, Delhi
Cr. C. No. 1310/2019
FIR No.50/2018
PS:Karawal Nagar
State vs. Pappu
JUDGMENT
a) ID. No. of the case : 1310/2019
b) CNR No. DLNE-02-002332-2019
c) Date of Commission : 27.01.2018
of offence
d) Name of the Complainant/ : ASI Ashok Kumar
Informant.
e) Name of the Accused, his : Pappu, W/o Sh. Sohan Lal
parentage and address R/o Village Fateh Pur, District
Sikar, Rajasthan.
f) Offences complained of : U/s 33 of Delhi Excise Act
g) Plea of the Accused : Pleaded not guilty
h) Final Order : Acquitted
i) Date of such order : 28.01.2025
j) Date of institution : 24.05.2019
Digitally
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ISRA ISRA
Date:
ZAIDI
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FIR No. 50/2018 1 State Vs. Pappu
Brief Facts of the Case
1. The accused is brought to face trial under Section 33 Delhi Excise Act (hereinafter referred as "the Act"). It is the case of the prosecution in succinct that on 27.01.2018 at around 9.30 pm near Shiv Vihar Tiraha, Bikaner Wali Gali, Karawal Nagar, Delhi one person namely Puppu (hereinafter referred to as 'the accused') was found in possession of 96 quarter bottles of illicit liquor as mentioned in seizure memo without any licence or permit as required by the Act. Thereafter, the present FIR was registered u/s 33 of the Act.
Court Proceedings
2. After investigation, chargesheet was filed and accused person was summoned. Mandate of Section 207 Cr.PC was complied with and charge was framed against the accused u/s 33 of the Act on 26.09.2023. The accused had pleaded not guilty and claimed trial. Thereafter, the matter was listed for PE.
Prosecution Evidence
3. In order to prove and substantiate its case, the prosecution has examined following witnesses.
Prosecution Witnesses
S. No. Witness number Name of the witness
1. PW1 Retd. ASI Om Prakash
2. PW2 HC Sachin
3. PW3 ASI Ashok Kumar
Documents relied upon by the prosecution
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S. No. Ex./Mark Nature of documents
1. Ex. PW2/A Seizure memo
2. Ex.PW-2/B Tehrir
3. Ex.PW-2/C Site plan
4. Ex.PW-2/D Arrest memo
5. Ex.PW-2/E Personal search memo
6. Ex.PW-2/F Disclosure statement
Statement of the Accused u/s 313 Cr.P.C
4. Statement of accused was recorded u/s 313 Cr.P.C on 04.12.2024. The accused stated that he is innocent. The police had called him the PS and falsely implicated in the present case. He did not know anything about the present case.
Evidence of the Defence
5. No defence evidence was led by the accused despite granting him an opportunity.
Final Arguments
6. During the course of final arguments, it has been argued by Ld. APP for the State that prosecution has proved its case beyond reasonable doubt and all the ingredients of relevant Section are complete and in view of the presumption under Section 52 of the Act the accused be convicted of the present offence.
7. On the other hand, the Ld. Defence Counsel argued that the accused has been falsely implicated in the present case, that there is no public witness of the incident and that the recovery is planted upon the person of the accused as no recovery was ever effected from him. He also pointed out to the contradictions in the testimony of Digitally signed by FIR No. 50/2018 3 State Vs. Pappu ISRA ISRA Date:
ZAIDI ZAIDI 2025.01.28 16:00:14 +0800 the witnesses. According to him, the prosecution miserably failed to prove its case against the accused beyond reasonable doubt.
Statement of accused u/s 294 Cr.P.C
8. The accused had admitted the FIR No.50/2018, PS Karawal Nagar Ex.A1 and Chemical Examiner Report which is Ex. A-2 under Section 294, Cr.PC and hence the examination of the witnesses were dispensed with. This is the entire evidence in this matter.
Brief reasons for the just decision of the case:
9. It is a settled proposition of law that in a criminal trial, it is for the State to prove its case beyond all reasonable doubts by leading reliable, cogent and convincing evidence and it is for the prosecution to ensure that its case is able to stand on its own legs. The prosecution cannot derive any benefit whatsoever from the weakness of the defence of the accused if any. Accused is entitled to the benefit of every reasonable doubt in the prosecution version.
10. PW1 received sample from MHCM vide Road certificate number 57/21/18. He received two samples of 'Desi Sharab Santara' and deposited with the ITO. He testified in his cross-examination that no fare charges/TADA were demanded by him.
11. PW2 deposed in his examination in chief that he was on emergency duty. When he was returning back to PS and reached Shiv Vihar Tiraha, one secret informer informed and pointed out towards the accused that he was carrying illicit liquor in plastic bag. When that bag was opened, 96 quarter bottles of two band labelled as 'Bada Santara' 180 ml. each and 'Asli Santara for Sale in Haryana' was recovered from his possession. ASI Ashok seized the case property vide seizure Digitally signed by ISRA ISRA Date:
ZAIDI FIR No. 50/2018 4 State Vs. Pappu ZAIDI 2025.01.28 16:00:27 +0800 memo Ex.PW-2/A and prepared the tehrir Ex.PW-2/B and site plan Ex.PW-2/C. Thereafter, the accused was arrested. He testified in his cross-examination that he reached at the spot on the bike. He did not remember who was the owner of the bike. No notice was served upon the public persons to join the investigation. He did not remember whether accused carried illicit liquor in plastic bag on shoulder. No seal handling memo was prepared by ASI Ashok. He did not remember when the site plan was prepared or if it was prepared prior to registration of FIR. He did not remember when the case property was prepared by the IO. He denied the other suggestions put by the Ld. defence counsel.
12. PW3 deposed in his examination in chief that he was on emergency duty. When he was returning back alongwith HC Sachin to PS and reached Shiv Vihar Tiraha, one secret informer informed and pointed out towards the accused that he was carrying illicit liquor in plastic bag. When that bag was opened, 96 quarter bottles of two band labelled as 'Bada Santara 180 ml. each' and 'Asli Santara for Sale in Haryana' was recovered. He seized the case property vide seizure memo Ex.PW-2/A and prepared the tehrir Ex.PW-2/B and site plan Ex.PW-2/C. Thereafter, the accused was arrested. He further deposed that he along with HC Sachin took the accused and case property to the PS. He testified in his cross-examination that he did not serve any notice upon the public persons to join the investigation. He testified in his cross- examination that he reached at the spot on the bike. He did not remember who was the owner of the bike. He did not remember whether accused carried illicit liquor in plastic bag on shoulder. No seal handling memo was prepared by him. He did not remember when the site plan was prepared or if it was prepared prior to registration of FIR. He did not remember when the case property was prepared by the IO. He denied the other suggestions put by the Ld. defence counsel.
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13. The allegations against the accused is that he was found in possession of illicit liquor bottles. The case of the prosecution is entirely based on the recovery allegedly effected from the accused persons. The prosecution has relied heavily upon the presumption under Section 52 of the Act. To contend that in the present case, the burden was upon the accused to prove that he had not committed the offence under Section 33 of the Act and since the accused had failed to discharge the onus cast upon him, the accused should be found guilty in the presence case. However, perusal of the Section 52 of the Delhi Excise Act, 2009 reveals that the presumption under the Section 52 can be raised only after the prosecution has discharged its initial onus as to the accused having been found in possession of illicit liquor. For the sake of convenience, Section 52 of the Act is reproduced herein under:
"52. Presumption as to commission offence in certain cases: - 1) In prosecution under Section 33, it shall be presumed, until the contrary is proved, that the accused person has committed the offence punishable under that section in respect of any intoxicant, still, utensil, implement or apparatus, for the possession of which he is unable to account satisfactorily.".
14. Hence, to avail the benefit of the presumption, it was still for the prosecution to prove that the illicit liquor was in fact recovered from the possession of the accused. The recovery was effected by police witnesses. All of the witnesses including the complainant are police witnesses. It is settled law, that when only police witnesses have been examined, their evidence must be thoroughly scrutinized.
15. In present case, prosecution was duty bound to prove the possession of the illicit liquor with accused. Same is sought to be proved by the recovery memo and testimony of the witnesses. But the manner of conducting inquiry, seizure and search etc. on the spot at the time of arrest of the accused and alleged recovery of liquor in this case, makes the prosecution version highly doubtful. Incident is stated to have happened at about 9:30 pm and it is evident that none of the prosecution witnesses, could depose in FIR No. 50/2018 6 State Vs. Pappu Digitally signed by ISRA ISRA Date:
ZAIDI ZAIDI 16:00:58 2025.01.28 +0800 their testimony that place of incident was not a public place and there was no public witness at that place at the time of alleged seizure and recovery of case property from the accused. Whereas perusal of site plan Ex. PW-2/C, reveals that place of seizure was a public place/ public road. Further, these witnesses had failed to bring anything on record that they had tried to join independent public witness during the entire search and seizure proceedings. Therefore, it is clear that no efforts were made to join independent witnesses despite their availability which causes a serious dent in the story of the prosecution and all these facts makes the alleged recovery very doubtful.
16. Regarding the importance of joining independent witness during investigation in a case like the present one, reliance may be placed on Anoop Joshi v. State 1999(2) C.C. Cases 314 (HC), wherein, Hon'ble High Court of Delhi has observed as under:
"18. It is repeatedly laid down by this court that in such cases it should be shown by the police that sincere efforts have been made to join independent witnesses. In the present case, it is evident that no such sincere efforts have been made, particularly when we find that shops were open and one or two shopkeepers could have been persuaded to join the raiding party to witness the recovery being made from the appellant. In case any of the shopkeepers had declined to join the raiding party, the police could have later on taken legal action against such shopkeepers because they could not have escaped the rigours of law while declining to perform their legal duty to assist the police in investigation as a citizen, which is an offence under the IPC".
Also, in State of Punjab v. Balbir Singh, AIR 1994 SC 1872, the Hon'ble Supreme Court held as under:
"It therefore emerges that non-compliance of these provisions i.e., Sections 100 and 165 Cr.P.C. would amount to an irregularity and the effect of the same on the main case depends upon the facts and circumstances of each case. Of course, in such a situation, the court has to consider whether any prejudice has been caused to the accused and also examine the evidence in respect of search in the light of the fact that these provisions have not been complied with and further consider whether the weight of evidence is in any manner affected because of the non-compliance. It is well-settled that the testimony of a witness is not to be doubted or discarded merely on the ground that he happens to be an official but as a rule of caution and depending upon the circumstances of the case, the courts look for independent corroboration. This again depends on question whether the official has FIR No. 50/2018 7 State Vs. Pappu Digitally signed by ISRA ISRA Date:
ZAIDI ZAIDI 2025.01.28 16:01:06 +0800 deliberately failed to comply with these provisions or failure was due to lack of time and opportunity to associate some independent witnesses with the search and strictly comply with these provisions." [Emphasis supplied]
17. Considering the aforesaid observations made by the Higher Courts, the omissions/failure on the part of investigating agency to join independent public witnesses create reasonable doubt in the prosecution story and substantiates the defence version that there is false implication of the accused in the present case and that the recovery has been falsely planted upon the accused. Further, considering facts and circumstances of the present case in the light of ratio in State of Punjab v. Balbir Singh, AIR 1994 SC, there was no lack of time and opportunity to associate some independent witnesses with the search and strictly comply with the provisions of Code of Criminal Procedure. Hence, the above-mentioned facts create serious doubt on the case of the prosecution.
18. Further, as per evidence on record, the seal after use was not given to any independent public person. Even, no seal handing over memo is on record. IO himself testified in his cross-examination that he did not prepare the same. Hence, considering the legal position, the benefit of doubt should be given to the accused, as tampering with case property in such a scenario cannot be ruled out. The reliance is placed on the judgment of Ramji Singh v. State of Haryana 2007 (3) R.C.C. (Criminal) 452, wherein it is held that-
"7. The very purpose of giving seal to an independent person is to avoid tampering of the case property. It is well settled that till the case property is not dispatched to the forensic science laboratory, the seal should not be available to the prosecuting agency and in the absence of such a safeguard the possibility of seal, contraband and the samples being tampered with cannot be ruled out."
Similarly, Hon'ble Delhi High Court in Safiullah v. State, 1993 (1) RCR (Criminal) 622, held that -
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"10. The seals after use were kept by the police officials themselves. Therefore, the possibility of tampering with the contents of the sealed parcel cannot be ruled out. It was very essential for the prosecution to have established from stage to stage the fact that the sample was not tampered with. Once a doubt is created in the preservation of the sample the benefit of the same should go to the accused."
19. Further, Chapter 22 Rule 49 of Punjab Police Rules, 1934, provides that the hour of arrival and departure on duty at or from a police station of all enrolled police officers of whatever rank, whether posted at the police station or elsewhere, with a statement of the nature of their duty shall be entered vide a separate entry and this entry shall be made immediately on arrival or prior to the departure of the officer concerned and shall be attested by the latter personality by signature or seal. In the present case, no departure or the arrival entry has been proved on the record by the prosecution. In absence of the departure and arrival entry of the police officials their presence at the spot cannot be believed. Reference can be made to on Rattan Lal v. State 1987 (2) Crimes 29. No arrival or departure entries have been placed on record to fortify the case of the prosecution by the IO. There is no independent witness to the seizure memo.
20. For establishing the factum of recovery, the prosecution examined four witnesses out of which none were public witnesses. The public witnesses were not joined during the recovery of the alleged illicit liquor. The prosecution has failed to examine any public witness therefore, the version of the prosecution has remained uncorroborated by any independent material witness. The recovery witness examined by the prosecution in the present case are police witnesses who are interested in the success of the prosecution case and therefore, the probability of them being guided by the extraneous factors, other than truth, cannot be ruled out. The police witnesses cannot be straightaway termed as unreliable witnesses, however, when there is a possibility of joining any public witness in the investigation and still no genuine efforts are made to join the independent person as witness, then the testimony of the police witness does not lend sufficient Digitally signed by ISRA ISRA ZAIDI Date:
FIR No. 50/2018 9 State Vs. Pappu ZAIDI 2025.01.28 16:01:58 +0800 credence/reliability, unless it is corroborated by independent material witness. In view of above discussion, it is duly established that genuine efforts were not made by the IO of the case to join the public witness. There is no independent witness to the seizure memo.
21. The non-joining of the public witness at the time of alleged recovery of the article creates doubt in the story of the prosecution as was held in Pawan Kumar v. Delhi Administration (1987 CC 585) Delhi High Court. In these circumstances, as despite the presence of public persons at/around the place of alleged recovery the investigating officer failed to join independent public persons as witness to the proceedings of the present matter, warrants an adverse inference to be drawn under Section 114 (g) of the Evidence Act that the evidence if produced would have been unfavourable to the case of the investigating agency/prosecution and thus, the prosecution has failed to prove the recovery from the accused beyond reasonable doubt. Reliance can be profitably placed on the judgment of Hon'ble SC of India in case of Pradeep Narayan vs. State of Maharashtra (AIR 1995 SC 1930) held that failure of police to join witness from locality during search creates doubt about fairness of investigation, benefit of which has to go to the accused.
22. It is evident that no handing over memo of the seal was prepared. Therefore, this court is of the considered opinion that link evidence concerning the seal movement was missing in this present case, which fact by itself is sufficient to casts a shadow a doubt on the authenticity of the prosecution case.
23. Further there is no independent witness to the sealing of the case property. The liquor was with the possession of police officials only and the chances of tampering with the seal cannot be ruled out. It was an imperative task for the police officials to engage Digitally signed by ISRA ISRA ZAIDI FIR No. 50/2018 10 State Vs. Pappu Date:
ZAIDI 2025.01.28 16:02:07 +0800 any public witness while sealing the case property. Further neither the IO nor the witnesses had made any reflection regarding the handing over memo of the seal. The seal was with in the possession of the police officials only and there is no clarity as to when the seal was handed over and to whom it was handed over. Therefore, it can be very well said that there are fair chances of tampering with the seal. Hence, it can be very well said that prosecution has failed to establish its case beyond reasonable doubt.
24. One another fact which this Court considers necessary to discuss here is that as per the story of the prosecution 96 quarter bottles of illicit liquor were recovered. IO had taken two quarter bottles for sample from respective lots. Therefore, at this stage prosecution has failed to establish beyond reasonable doubt that those remaining quarters were containing the liquor as in absence of any sample that fact that other quarters were containing illicit liquor remained unestablished. It was the bounden duty of the police to take out the samples from each of the bottle. There are serious lapses in the investigation conducted by the police which has made the story of prosecution more doubtful.
25. It is an adage that law works on the wheels of evidence. Every criminal trial is a journey of discovery and unfolding the truth. But in the present case no sufficient evidence is there on record to warrant the conviction of the accused person. In the case of Prem Singh Yadav Vs. CBI (178 (2011) DLT 529). It was held that where it is possible to have both views one in favor of prosecution and one in favor of accused, the later one should prevail. Prosecution could not prove beyond reasonable doubt complicity of accused. In a criminal case the burden of proof is on the prosecution to prove the case against the accused beyond reasonable doubt. The burden never shifts. An accused enjoys the presumption of innocence. There is no duty on an accused person Digitally signed by ISRA ISRA Date:
ZAIDI ZAIDI 2025.01.28 16:02:28 +0800 FIR No. 50/2018 11 State Vs. Pappu to purge himself of guilt. Where there is a lingering doubt, the accused person is given the benefit of the doubt.
26. On perusal of the documents and consideration of submissions, it is the considered opinion of the court that prosecution has not been able to prove the case against the accused beyond reasonable doubt and the accused is entitled to be given the benefit of doubt. Accused Pappu is hereby acquitted for the offence i.e. section 33 of the Excise Act.
File be consigned to record room after due compliance. Announced in the open Court today. Digitally signed by ISRA ISRA Date:
ZAIDI ZAIDI 2025.01.28 16:02:36 +0800 (Isra Zaidi) JMFC-04/NE/KKD/Delhi 28.01.2025 This judgment contains 12 pages and each page bears my signature.
Digitally signed by ISRA ISRA Date:
ZAIDI ZAIDI 2025.01.28 16:02:43 +0800 (Isra Zaidi) JMFC-04/NE/KKD/Delhi 28.01.2025.
FIR No. 50/2018 12 State Vs. Pappu